Shri Eldon Khongmawloh vs . State Of Meghalaya
2022 Latest Caselaw 89 Meg

     Serial No. 01
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                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG

Crl.Petn. No. 61 of 2021

                                                 Date of Decision: 23.03.2022
Shri Eldon Khongmawloh                  Vs.         State of Meghalaya
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)   :     Mr. D.K. Warjri, Adv.
For the Respondent(s)             :     Mr. H. Kharmih, Addl. Sr. GA.

i)       Whether approved for reporting in                  Yes/No
         Law journals etc.:

ii)      Whether approved for publication
         in press:                                          Yes/No


                         JUDGMENT AND ORDER

1. Heard Mr. D.K. Warjri, learned counsel for the petitioner who has submitted that this application under Section 482 Cr.P.C has been preferred to invoke the inherent power of this Court for quashing of an FIR dated 19.01.2021 filed by one S.I J. Nonglang of Pynursla P.S before the Officer- In-Charge, Pynursla Police Station, East Khasi Hills District, to the effect that information was received from the In-charge Mawdiangdiang Police Outpost, that a report has been received from NEIGRIHMS Hospital, Shillong that one minor girl of about 17 years of age, a resident of Pongtung village, Pynursla was brought to the hospital for medical treatment and child labour. On enquiry, it was learned that the said minor girl was married to the petitioner herein and the couple have been living under the same roof with their parents

since the month of March, 2020. On 16.01.2021, the said minor girl gave birth to a baby boy and at the relevant time was still under medical treatment in the said hospital. Noting that the parents are not willing to file any complaint, the informant has accordingly requested that appropriate action may be taken in this regard.

2. On receipt of the said FIR, Pynursla P.S Case No. 02(1)2021 u/s 5(j)(ii)/6 of the POCSO Act, 2012 was registered against the petitioner herein and on the Investigating Officer finding a prima facie case against the petitioner, eventually the learned Special Judge (POCSO), Shillong took cognizance of the case and the petitioner was accordingly made to stand trial in connection with Special (POCSO) Case No. 15 of 2021 u/s 5(j)(ii)/6 of the POCSO Act, 2012. The case is at the stage of consideration of charge.

3. Mr. Warjri has submitted that the petitioner is a villager earning his livelihood through daily wage labour and he had cohabited with the said alleged victim as per Khasi customs since the month of March, 2020 and is living together with his wife and family members in the same roof in a happy conjugal relationship where after, a baby boy was born to them on 16.01.2021.

4. Mr. Warjri has further submitted that the petitioner and his wife as well as the family member were overjoyed when they were blessed with a child, but their joy turned to sadness when it is learned that the said FIR was filed against the petitioner at the behest of the hospital authorities and that the petitioner was charged under the POCSO Act which is unknown to him.

5. On reading of Section 5(j)(ii) together with Section 6 of the POCSO Act, Mr. Warjri submits that the contents pertain to sexual assault which is far from the facts of the case as the element of sexual assault is absent.

6. It is also pertinent to mention that none of the family members of the girl had any intention to file an FIR against the petitioner and to this effect, even the alleged victim in her statement u/s 161 Cr.P.C has stated that she has no intention to file any complaint against the petitioner who is her husband as

he is taking good care of her and their child and also being the sole bread owner of the family, they are completely dependent on the petitioner.

7. Again, Mr. Warjri has submitted that the intention of the legislature in enacting the Protection of Children from Sexual Offences Act, 2012 (POCSO) is not to undermine the right to life and personal liberty guaranteed under Article 21 of the Constitution of India, therefore prosecuting or punishing a man who is in a romantic relationship with a minor girl and to treat him as an offender was never the objective of the POCSO Act since the goal of the Act is to punish the perpetrators so that peace and tranquility is maintained in society, but it is never the objective of the Act to create this harmony in a happy family union. It is therefore prayed that the said FIR and related proceedings may be set aside and quashed.

8. In support of his case, the learned counsel has cited the following:

(i) Parbathbhai Aahir alias Parbathbhai Bhimsinhbhai Karmur & Ors v. State of Gujarat and Anr: (2017) 9 SCC 641, para 14(ii)(iii).

(ii) Sabari @ Sabarinathan @ Sabarivasan v. The Inspector of Police & Ors: High Court of Madras, para 28 & 29.

(iii) Ranjit Rajbanshi v. State of West Bengal & Ors: C.R.A. No. 458 of 2018, para 44, 47, 48, 49, 54 & 55.

(iv) Ashwinbhai @ Raj Ranchhodbhai Poyala v. State of Gujarat:

R/Criminal Appeal No. 1089 of 2021, para 7.

(v) Kundan & Anr. v. State & Anr: CRL.M.C 27/2022, High Court of Delhi, para-4, 5, 6, 7 & 9.

9. Mr. H. Kharmih, learned Addl. Sr. G.A. while opposing the prayer made in this petition has submitted that the admitted fact is that the alleged victim girl is now staying together with the petitioner as husband and wife. The mother and father of the said victim girl in their statement has also confirmed this fact and has stated that the petitioner and their daughter are now living together in their house along with the grandson who is the child of

the couple.

10. Mr. Kharmih has however stressed on the fact that the alleged victim girl was 17 years old and it is well settled that she is not able to give consent to any act of sexual intercourse as in the eyes of the law, she is still considered a child.

11. The provisions of Section 3 of the POCSO Act which defines penetrative sexual assault and also Section 5(n) which describes aggravate penetrative sexual assault by a relative of the child, even by marriage, was cited by Mr. Kharmih while also referring to other laws such as the Prohibition of Child Marriage Act, 2006 which prohibits child marriage and the Juvenile Justice (Care and Protection of Children) Act, 2015 where the provision of Section 2(14)(xii) which defines a child in need of care and protection as one who is at imminent risk of marriage before attaining the age of marriage, i.e. 18 years to bring home the point that the relationship between the alleged victim girl and the petitioner herein is in clear violation of the various provisions of law and for which the petitioner has to face trial and as such, the prayer for quashing of the related criminal proceedings may not be considered by this Court.

12. On consideration of the submission and contention of the rival parties, at the outset, it is thought prudence to understand the statement of objects and reasons of the POCSO Act, 2012. Since sexual offences against children are not adequately addressed by the existing laws, a special law was enacted to address this issue. The provisions of Article 15 and 39 of the Constitution of India has been referred, inasmuch as, the need to ensure that the tender age of children is not abused, but rather protected against exploitation, sexual assault, sexual harassment and pornography are cited as some of the causes for exploitation for which protection ought to be given to the children. Hence the Act.

13. In Section 2 under the heading definitions at sub-Section 1 clause (d),

"child" means any person below the age of 18 years. This is only with regard to the biological aspect of the matter; however the mental and psychological aspect has not been indicated, inasmuch as, a child born and brought up in a rural setup may have a different mental faculty as compared to a child brought up in an urban setting. In the context of consensual or voluntary sexual intercourse, and more so if the girl is underage while the boy would be above the age of 18 and also if it is confirmed that they are living as husband and wife and the wife perhaps having given birth to a child, the issue becomes more complex.

14. Coming to the case in hand, the admitted fact is that there has been sexual physical contact and relationship between the petitioner and the alleged victim girl, which has resulted in the girl giving birth to a child. It is also admitted that the alleged victim girl at the relevant period was below the age of 18 years and therefore, is a 'child' as per Section 2(1)(d) of the POCSO Act. Being a child and not capable of giving consent, the sexual contact by the petitioner is accordingly termed as "penetrative sexual assault" u/s 3 of the said POCSO Act and u/s 5(j)(ii) where, as a consequence of sexual assault, the female child became pregnant, the offence becomes "aggravated penetrative sexual assault" for which offence punishment u/s 6 would be very severe to the extent that there could be an imprisonment for a period of not less than 10(ten) years or even life imprisonment.

15. According to Webster's dictionary, 'assault' means a threat or attempt to inflict offensive physical contact or bodily harm on a person (as by lifting a fist in a threatening manner) that puts the person in immediate danger of or in apprehension of such harm or contact.

16. Again, if one looks at what happened between the petitioner and the alleged victim girl granted, there has been a physical sexual contact and intercourse between an adult and a child, although the alleged victim girl was about 17 years at that time. However, as is evident, the act committed under the circumstances cannot be called or termed in any logical or rational sense

as a case of assault since no threat or attempt to inflict offensive physical contact or bodily harm on the alleged victim girl has been made out. As stated by the alleged victim girl, the act was voluntary and with consent premises on the fact that the two are in love and are living together as husband and wife.

17. The decisions cited by the learned counsel for the petitioner in this regard appears to be relevant. In the case of Ranjit Rajbanshi (supra) at paragraphs 47, 48 & 49, the Hon'ble Calcutta High Court has held as under:

"47. In the present case, the victim girl was admittedly 16 ½ years old and studied in Class XII at the relevant point of time. She was not naïve enough not to know the implication of sexual intercourse; rather, the victim admittedly had a physical relationship with the accused, who was also of a very young age, on several occasions prior to the incident. Although the consent of a minor is not a good consent in law, and cannot be taken into account as 'consent' as such, the expression 'penetration' as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition. In the latter case, the expression 'penetrates', in Section 3(a) of the POCSO Act might not always connote mere voluntary juxtaposition of the sexual organs of two persons of different genders. If the union is participatory in nature, there is no reason to indict only the male just because of the peculiar nature of anatomy of the sexual organs of different genders. The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Hence, seen in proper perspective, the act alleged, even if proved, could not tantamount to penetration sufficient to attract Section 3 of the POCSO Act, keeping in view the admitted several prior occasions of physical union between the accused and the victim and the maturity of the victim.

48. As such, it cannot be said that the accused was guilty of penetrative sexual assault, as such, since here the act of penetration, even if true, would have to be taken not as an unilateral act of the accused but a participatory moment of passion involving the participation of both the victim and the accused.

49. Although the question of consent does not arise in case of a minor, in order to attract Section 376(1) of the IPC, it had to be established that the alleged offence was committed against the will of the victim. Read in conjunction, the provisions of Section 376 of the IPC

and Section 3 of the POCSO Act ought to be construed on a similar footing and cannot incriminate the accused for a voluntary joint act of sexual union."

18. In the case of Sabari (supra), a single bench of the Hon'ble Madras High Court at paragraphs 28 and 29 has made a suggestion that the POCSO Act should be amended, the relevant paragraph being reproduced as under:

"28. Therefore, on a profound consideration of the ground realities, the definition of 'Child' under Section 2(d) of the POCSO Act can be redefined as 16 instead of 18. Any consensual sex after the age of 16 or bodily contact or allied acts can be excluded from the rigorous provisions of the POCSO Act and such sexual assault, if it is so defined can be tried under more liberal provision, which can be introduced in the Act itself and in order to distinguish the cases of teen-age relationship after 16 years, from the cases of sexual assault on children below 16 years. The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence.

29. In this regard, the respondents 3 to 5 are directed to place the decision before the competent authority and initiate appropriate steps to explore whether the suggestions made by this Court are acceptable to all stakeholders. The respondents are directed therefore to take the issue forward as they deem fit, as expeditiously as possible."

19. Echoing the same sentiment, a division bench of the Hon'ble Madras High Court in the case of Vijayalakshmi & Anr. v. State & Anr in Crl.O.P No. 232 of 2021, paragraphs 12 & 18 has held as follows:

"12. As rightly recognized by the Learned Single Judge of this Court in Sabari's Case (cited supra), incidences where teenagers and young adults fall victim to offences under the POCSO Act being slapped against them without understanding the implication of the severity of the enactment is an issue that brings much concern to the conscience of this Court. A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child. However, a large array of cases filed under the POCSO Act seems to be those arising on the basis of complaints registered by the families of adolescents and teenagers who are involved in romantic relationships with each other. The scheme of the Act clearly shows that it did not intend to bring within

its scope or ambit, cases of the nature where adolescents or teenagers involved in romantic relationships are concerned.

18. In the present case, the 2nd Petitioner who was in a relationship with the 2nd Respondent who is also in his early twenties, has clearly stated that she was the one who insisted that the 2nd Respondent take her away from her home and marry her, due to the pressure exerted by her parents. The 2nd Respondent, who was placed in a very precarious situation decided to concede to the demand of the 2 nd Petitioner. Thereafter, they eloped from their respective homes, got married and consummated the marriage. Incidents of this nature keep occurring regularly even now in villages and towns and occasionally in cities. After the parents or family lodge a complaint, the police register FIRs for offences of kidnapping and various offences under the POCSO Act. Several criminal cases booked under the POCSO Act fall under this category. As a consequence of such a FIR being registered, invariably the boy gets arrested and thereafter, his youthful life comes to a grinding halt. The provisions of the POCSO Act, as it stands today, will surely make the acts of the boy an offence due to its stringent nature. An adolescent boy caught in a situation like this will surely have no defense if the criminal case is taken to its logical end. Punishing an adolescent boy who enters into a relationship with a minor girl by treating him as an offender, was never the objective of the POCSO Act. An adolescent boy and girl who are in the grips of their hormones and biological changes and whose decision-making ability is yet to fully develop, should essentially receive the support and guidance of their parents and the society at large. These incidents should never be perceived from an adult's point of view and such an understanding will in fact lead to lack of empathy. An adolescent boy who is sent to prison in a case of this nature will be persecuted throughout his life. It is high time that the legislature takes into consideration cases of this nature involving adolescents involved in relationships and swiftly bring in necessary amendments under the Act. The legislature has to keep pace with the changing societal needs and bring about necessary changes in law and more particularly in a stringent law such as the POCSO Act."

20. The Hon'ble High Court of Delhi in the case of Kundan (supra) dealing with a similar case in which the alleged victim girl who had gone missing and was found in the company of the accused therein, had stated that she has married the said accused and a child out of the said wedlock was born to them with the parents of both the parties having accepted the marriage, an application u/s 482 Cr.P.C for quashing of the related FIR, on being preferred was allowed. Elaborating on the power of the High Court u/s 482 Cr.P.C, the court has quoted the decision in the case of Gian Singh v. State of Punjab:

(2012) 10 SCC 303 at paragraphs 55 & 56 therein which are also reproduced herein for better elucidation:

"55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.

56. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided."

21. In the case of Ashwinbhai (supra), the Hon'ble Gujarat High Court at paragraph 7 has also taken note of the fact that when two persons are staying together as husband and wife, (assuming that the wife is below the age of 18 years) an offence under the Prohibition of Child Marriage Act has been observed more in breach than in compliance and under the peculiar facts and circumstances of the case, the order of conviction passed by the Sessions Court was set aside and quashed.

22. Again, under the peculiar facts and circumstances of the instant case, the observation of the Hon'ble Supreme Court at paragraph 13 of the case of Ramgopal & Anr. v. State of Madhya Pradesh: 2021 SCC Online, SC 834, would be relevant, inasmuch as, the Hon'ble Supreme Court has held that "...Handing out punishment is not the sole form of delivering justice. Societal method of applying laws evenly is always subject to lawful exceptions..." and again, it was said that "...the touchstone for exercising the extra-ordinary power under section 482 Cr.P.C. would be to secure the ends of justice...".

This has been precisely the endeavor of this court in this matter.

23. This Court is in respectful agreement with the cases cited above favouring the petitioner and accordingly, this petition is found to be meritorious and the same is hereby allowed.

24. Accordingly, the FIR and proceedings in Special POCSO Case No. 15 of 2021 before the Court of the learned Special Judge, POCSO, Shillong and the FIR dated 19.01.2021 in Pynursla P.S Case No. 02(1)2021 are hereby set aside and quashed. Bail bond executed if any, stands discharged.

25. Registry is directed to send back the Lower Court case record.

26. Petition is disposed of. No cost.

Judge

Meghalaya 23.03.2022 "D. Nary, PS"